Guernsey: A Little Knowledge Can Be A Dangerous Thing

Information is, of course, crucial to everything we do. It also
has a value – witness the burgeoning (and criminal) market in
identity theft. This is particularly true in relation to personal
financial information where society currently finds itself torn
between two competing principles. On the one hand governments want
transparency in relation to these matters so that they can tax
consistently and make it difficult for people or corporations to
avoid or evade their fiscal responsibilities. On the other hand,
these same governments acknowledge rights to privacy and
confidentiality, which are often enshrined in data protection
legislation or (in some jurisdictions) specific bank secrecy
rules.

How do professional trustees fit in to this framework? They hold
a great deal of information after all, including the existence or
otherwise of a particular trust, the terms of that trust, the
assets and financial records of that trust and, ultimately, the
personal details of the beneficiaries of that trust. They
frequently find themselves in a position where they are being asked
by other persons to disclose some or all of that information. They
may even find themselves in a position where they positively want
to disclose certain information, but are unsure of their ability to
do so. What are the applicable rules? Three common questions which
crop up are:

SHOULD A TRUSTEE TELL A BENEFICIARY THAT HE OR SHE IS A
BENEFICIARY?

Beneficiaries of a discretionary trust often do not know that
they are the beneficiaries of that trust (or even whether or not
the trust in question exists). Is the trustee obliged to tell them?
The principle here is that a trust must be capable of being
enforced, and the only people in a position to enforce a trust are
its beneficiaries. It follows that the beneficiaries must know of
the trust (and their status under it) in order to make sure that
the trustees are administering the trust correctly. It follows that
a trustee is, generally, under a duty to ensure that adult
beneficiaries of full capacity are (i) aware of the existence of
the trust and (ii) of their interest in it.

SHOULD A TRUSTEE GIVE INFORMATION TO THE SETTLOR?

Clearly, if the settlor of a trust is also a beneficiary, then
he is entitled to the same information that any other beneficiary
is entitled to (i.e. enough to enforce the terms of the trust,
which will generally include the trust deed and the accounts of the
trust). Otherwise, it is possible that the terms of the trust may
include obligations on the trustees to provide the settlor with
information. If there are no such express terms (and if the settlor
is not a beneficiary) then the settlor has no more right to
information about the trust and its assets than any other stranger
to the trust.

DOES A TRUSTEE OWE A DUTY OF CONFIDENTIALITY TO
BENEFICIARIES?

The law is less clear on this question, but a recently decided
case in the Guernsey Court of Appeal (In Re B 35/2012) suggests
that the position of trustees vis-ŕ-vis beneficiaries is
analogous to that of bankers vis-ŕ-vis their customers
– i.e. that a general duty of confidentiality exists subject
to a number of exceptions. This is important because it gives
beneficiaries a right to sue trustees should the trustees disclose
information about the trust, its assets or the beneficiaries
themselves to third parties (such as tax authorities) which then
results in loss to the beneficiaries or to the value of the trust
fund. As noted however, the duty of confidentiality is not
absolute. The Guernsey Court of Appeal took the view that a duty of
confidentiality to beneficiaries did not apply where (i) the
disclosure in question was required by relevant law, (ii) the
disclosure is made with the express or implied consent of the
beneficiaries, (iii) the disclosure is in the public interest or
(iv) the interests of the trustee require the disclosure to be
made. The latter was very much the case in In Re B, where the
trustee was facing prosecution on money laundering and tax evasion
charges in France in the event that it did not disclose trust
information to a French court.

To summarise, information held by trustees is a valuable
commodity and should not be lightly disseminated. The potential
consequences of wrongful disclosure are significant. When faced
with a request to share information a professional trustee must
determine the applicable limits of its powers and obligations
before doing so.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here

If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you
are granted a non-exclusive, revocable license to access the Website under its
terms and conditions of use. Your use of the Website constitutes your agreement
to the following terms and conditions of use. Mondaq Ltd may terminate your use
of the Website if you are in breach of these terms and conditions or if Mondaq
Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to
read the full text of the content and articles available (the Content). You may
not modify, publish, transmit, transfer or sell, reproduce, create derivative
works from, distribute, perform, link, display, or in any way exploit any of the
Content, in whole or in part, except as expressly permitted in these terms &
conditions or with the prior written consent of Mondaq Ltd. You may not use
electronic or other means to extract details or information about Mondaq.com’s
content, users or contributors in order to offer them any services or products
which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the
suitability of the information contained in the documents and related graphics
published on this server for any purpose. All such documents and related
graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or
its respective suppliers hereby disclaim all warranties and conditions with
regard to this information, including all implied warranties and conditions of
merchantability, fitness for a particular purpose, title and non-infringement.
In no event shall Mondaq Ltd and/or its respective suppliers be liable for any
special, indirect or consequential damages or any damages whatsoever resulting
from loss of use, data or profits, whether in an action of contract, negligence
or other tortious action, arising out of or in connection with the use or
performance of information available from this server.

The documents and related graphics published on this server could include
technical inaccuracies or typographical errors. Changes are periodically added
to the information herein. Mondaq Ltd and/or its respective suppliers may make
improvements and/or changes in the product(s) and/or the program(s) described
herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally
identifies you, including what sort of information you are interested in, for
three primary purposes:

To allow you to personalize the Mondaq websites you are visiting.

To enable features such as password reminder, newsletter alerts, email a
colleague, and linking from Mondaq (and its affiliate sites) to your website.

Mondaq (and its affiliate sites) do not sell or provide your details to third
parties other than information providers. The reason we provide our information
providers with this information is so that they can measure the response their
articles are receiving and provide you with information about their products and
services.

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to
view the free information on the site. We also collect information from our
users at several different points on the websites: this is so that we can
customise the sites according to individual usage, provide 'session-aware'
functionality, and ensure that content is acquired and developed appropriately.
This gives us an overall picture of our user profiles, which in turn shows to
our Editorial Contributors the type of person they are reaching by posting
articles on Mondaq (and its affiliate sites) – meaning more free content for
registered users.

We are only able to provide the material on the Mondaq (and its affiliate
sites) site free to site visitors because we can pass on information about the
pages that users are viewing and the personal information users provide to us
(e.g. email addresses) to reputable contributing firms such as law firms who
author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us
not to disclose your details to any of these parties, please tick the box above
or tick the box marked "Opt out of Registration Information Disclosure" on the
Your Profile page. We and our author organisations may only contact you via
email or other means if you allow us to do so. Users can opt out of contact when
they register on the site, or send an email to unsubscribe@mondaq.com with “no
disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate
registration form. This is a personalised service where users choose regions and
topics of interest and we send it only to those users who have requested it.
Users can stop receiving these Alerts by going to the Mondaq News Alerts page
and deselecting all interest areas. In the same way users can amend their
personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an
identifying user number. The cookies do not contain any personal information
about users. We use the cookie so users do not have to log in every time they
use the service and the cookie will automatically expire if you do not visit the
Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to
personalise a user's experience of the site (for example to show information
specific to a user's region). As the Mondaq sites are fully personalised and
cookies are essential to its core technology the site will function
unpredictably with browsers that do not support cookies - or where cookies are
disabled (in these circumstances we advise you to attempt to locate the
information you require elsewhere on the web). However if you are concerned
about the presence of a Mondaq cookie on your machine you can also choose to
expire the cookie immediately (remove it) by selecting the 'Log Off' menu option
as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example,
advertisers). However, we have no access to or control over these cookies and we
are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement,
and gather broad demographic information for aggregate use. IP addresses are not
linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or
its affiliate sites) are not responsible for the privacy practices of such other
sites. We encourage our users to be aware when they leave our site and to read
the privacy statements of these third party sites. This privacy statement
applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or
contests. Participation in these surveys or contests is completely voluntary and
the user therefore has a choice whether or not to disclose any information
requested. Information requested may include contact information (such as name
and delivery address), and demographic information (such as postcode, age
level). Contact information will be used to notify the winners and award prizes.
Survey information will be used for purposes of monitoring or improving the
functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our
site, we ask them for the friend’s name and email address. Mondaq stores this
information and may contact the friend to invite them to register with Mondaq,
but they will not be contacted more than once. The friend may contact Mondaq to
request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’
information. When users submit sensitive information via the website, your
information is protected using firewalls and other security technology. If you
have any questions about the security at our website, you can send an email to
webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode),
or if a user no longer desires our service, we will endeavour to provide a way
to correct, update or remove that user’s personal data provided to us. This can
usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will
post those changes on our site so our users are always aware of what information
we collect, how we use it, and under what circumstances, if any, we disclose it.
If at any point we decide to use personally identifiable information in a manner
different from that stated at the time it was collected, we will notify users by
way of an email. Users will have a choice as to whether or not we use their
information in this different manner. We will use information in accordance with
the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.

By clicking Register you state you have read and agree to our Terms and Conditions